Lewis v. Soule

• Decision Date: 17 September 1879
• Citation: 2 N.W. 400,52 Iowa 11
• Parties: LEWIS v. SOULE ET AL
• Court: Iowa Supreme Court

2 N.W. 400

52 Iowa 11

LEWIS v. SOULE ET AL

Supreme Court of Iowa, Des Moines

September 17, 1879

Appeal from Webster Circuit Court.

THE plaintiff claims to be the owner of certain lands in Webster county, to-wit: N.W. 1/4 of Sec. 22, Tp. 90, R. 29, west. He avers that the same was sold for taxes July 13, 1865, and that a tax deed was executed to one Pitt Cooke, and recorded July 20, 1867; that Pitt Cooke conveyed to one Jay Cooke, and Jay Cooke to the plaintiff, as trustee. He also avers that the defendants, as he is credibly informed and believes, make some claim to the land adverse to the estate of plaintiff and prays that they be barred from setting up said claim. The action was brought more than five years after the recording of the tax deed.

The defendants do not deny the tax sale or execution of the tax deed. But they deny that the plaintiff has acquired any title to the land, and insist that the action is barred by the statute of limitations. Judgment for plaintiff. Defendants appeal.

AFFIRMED. 95:1. Conveyance: BY BANKRUPT TO ASSIGNEE. A deed executed by a bankrupt, conveying real estate to his assignee, is sufficient, prima facie to authorize the assignee to maintain an action to quiet the title in himself.

2. Tax Sale: STATUTE OF LIMITATIONS: UNOCCUPIED LANDS. Where prairie land remains unoccupied for five years after the execution of a tax deed thereto, the possession is deemed to follow the tax title, and the holder thereof may maintain an action to protect such possession. Following Moingona Coal Co. v. Blair, 51 Iowa 447. BECK, CH. J., and ROTHROCK, J., dissenting.

3. Practice: ACTION TO QUIET TITLE. An action to quiet title may be maintained in all cases where the defendant makes some claim adverse to the estate of the plaintiff, even where the former is in the actual possession of the land.

4. Practice: FORM OF ACTION. The fact that legal relief is sought in an action in equity cannot be urged in abatement for the first time on appeal.

John Doud, Jr., A. E. Clarke and J. D. Springer, for appellants.

Dosh Bros. & Carstens, for appellee.

ADAMS J. CHIEF JUSTICE BECK, and MR. JUSTICE ROTHROCK, dissenting in part.

OPINION

ADAMS, J.

I.

The petition shows that Jay Cooke, at the time of the execution of the deed by him, was a bankrupt. The defendants assume that the averment means that he had been adjudicated a bankrupt, and they insist that he was by law prohibited from making any disposition of his property. He might, however, convey to an assignee in bankruptcy, and the petition avers that plaintiff holds the land as the assignee of Cooke, for his creditors.

The defendants further insist that there is no evidence of the plaintiff's appointment or qualification, and no evidence that the deed has been approved by any court of bankruptcy. But the deed would have the effect to pass the legal title, and we think that the plaintiff is at least prima facie authorized to maintain the action.

II. Section 902 of the Code provides that "no action for the recovery of real property sold for the non-payment of taxes shall lie unless the same be brought within five years after the treasurer's deed is executed and recorded." This action was not brought within five years from the recording of the deed, and the defendants insist that it is barred.

The action is not in the form of an action for the recovery of real property, but even if it were it would not be barred. The land was unoccupied until after the lapse of the five years, and the case comes within the ruling...